Prof. Adam Scales discusses Wyeth v. Levine during the ACS Supreme Court Preview VideoAudio
U.S. Supreme Court watchers have noted that this will be an important year for the highest court in the land. The Justices will decide more cases during the 2008-09 session than they have in the previous ten years combined. In addition, as many as three members of the Court may step down at the end of this session pending the outcome of the Presidential election.
Against this backdrop, several of the most intriguing upcoming cases will be discussed during the annual Supreme Court Preview at the Washington and Lee School of Law. Sponsored by the American Constitution Society (ACS), the event will be held on Tuesday, Oct. 14 beginning at 6:00 p.m. in the Millhiser Moot Court Room. The event is free and open to the public.
During the panel discussion, law professors will analyze several key cases currently on the 2008-09 docket, framing the important issues of the case and explaining the routes the cases took through the lower courts before being accepted by the U.S. Supreme Court. The cases and participating faculty are as follows:
FCC v. Fox, Professor Brian Murchison – This case addresses the Federal Communications Commission's ban on the use of "fleeting expletives" in live television broadcasts, such as those made in the past by stars Bono and Cher at various awards shows. Fox, supported by the other major networks, has argued that the FCC's policy is unclear and violates free speech rights, and a split panel from the 2nd U.S. Circuit Court of Appeals agreed. Solicitor General Paul Clement urged the Supreme Court to take up the case because the lower court's decision conflicted with an earlier case, FCC v. Pacifica Foundation, which gave the FCC authority to determine indecency and to prohibit such broadcasts.
Audio: Prof. Brian Murchison previews Fox Broadcasting v. FCC
Herring v. U.S., Professor Eric Luna – This case focuses on the exclusionary rule of the Fourth Amendment, which guards against unreasonable searches and seizures. An Alabama man is petitioning to have his conviction on drug and firearms charges overturned because evidence leading to his arrest was found during a search based on an incorrect warrant for arrest. However, a decision by the 11th U.S. Circuit Court of Appeals upheld his conviction, and in doing so created an exception to the long-standing exclusionary rule, which states that evidence obtained from an unlawful police search is not admissible by the prosecution during a criminal trial.
Audio: Prof. Eric Luna previews Herring v. U.S.
Negusie v. Mukasey, Professor Michelle Drumbl – This cases involves an asylum request from a Eritrean man, Daniel Girmai Negusie, conscripted to serve as a prison guard during that country's long war with Ethiopia. The Immigration and Naturalization Act prohibits asylum for anyone who "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." Negusie argues, however, that this prohibition is not applicable because he was forced to participate against his will and threatened with torture and death if he refused.
Audio: Prof. Michelle Drumbl previews Negusie v. Mukasey
Wyeth v. Levine, Professor Adam Scales – This case addresses the question of whether state tort law, the law that provides for remedies for civil injuries and other wrongs, is preempted by a federal agency. A Vermont woman had to have her arm amputated after a drug produced by Wyeth was administered using an injection method not mentioned in the product labeling, resulting in the drug coming into contact with her arteries and causing gangrene. After settling with her health care providers, the woman sued the drug maker for not providing better warnings on the drug's label. However, the drug company argued that because the labeling was approved by the Food and Drug Administration, which takes into account all risks and benefits when approving drugs and directions for use, the company is not liable for the drug's misuse.
Ysura v. Pocatello Education Association, Dean Rodney Smolla – This case will determine whether Idaho's Voluntary Contributions Act (VCA) violates First Amendment free speech rights for private and local government employees by prohibiting payroll deductions for activities the VCA defines as political. Thus far, lower courts, including the 9th U.S. Circuit Court of Appeals, have sided with the labor organizations suing officials of the State of Idaho that the VCA is unconstitutional when applied to private and local government employees.
Audio: Dean Rod Smolla previews Ysura v. Pocatello